Vioxx doubled heart attack risk

The local subsidiary of international pharmaceutical giant Merck & Co may be forced to pay more than $200 million to compensate users of Vioxx after the Federal Court found on Friday that the anti-arthritis drug was not fit for sale and had “about doubled the risk of heart attack".

Vioxx was withdrawn from the international market in 2004, but Federal Court judge Christopher Jessup found that Merck’s local subsidiary breached its duty of care to “warn the applicant’s doctor of the signal of potential cardiovascular risk which arose in March 2000".

That applicant was Graeme Peterson, a former navy medic who claimed Vioxx caused his 2003 heart attack. He acted as a representative of everyone who took Vioxx and suffered a heart attack in Australia between 2001 and 2004.

The court awarded Mr Peterson compensation of $287,000, after finding that Vioxx was not “fit for purpose" or of “merchantable quality", both offences under the Trade Practices Act.

Mr Peterson failed to make his case for negligence or misleading and deceptive conduct because the court was not persuaded that his heart attack “occurred by reason of this misleading conduct".

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Nevertheless, Peter Gordon, of Slater & Gordon, which ran the case, said he was “delighted".

“We did not get every single thing that we wanted, but we got enough to persuade us that the hundreds, if not thousands, of Australians that suffered a heart attack as a consequence of using Vioxx will receive compensation as a consequence of today’s ruling."

Slater & Gordon shares, which were put into a trading halt ahead of the decision, rose 2.5 per cent on Friday to close at $1.64.

Mr Gordon said more than 600 people who suffered heart attacks after taking Vioxx had contacted the firm before the decision. If the damages that were awarded to Mr Peterson were applied to that group, and assuming any appeal was not successful, total damages would amount to $180 million.

“But it could be well north of $200 million, depending on how many more come forward," Mr Gordon said.

Clayton Utz partner Colin Loveday, who represented Merck, said that “each of those claims are going to have to be dealt with on an individual basis".

He also said Merck would be appealing against the decision.

In 2007, Merck & Co agreed to pay $US4.85 billion to compensate victims in the United States who claimed to have suffered cardiovascular injuries from Vioxx.

Friday’s decision will provide a boost to compensation actions being run in other jurisdictions.

The trial also laid bare the marketing tactics of Merck, including its distribution of a publication about Vioxx under the guise of an independent journal, and its approach to public relations, including attempts to influence reporting of the trial.